State v. Wilkins ( 2015 )

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STATE OF CONNECTICUT v. WILLIAM WILKINS
(AC 37579)
Gruendel, Beach and Borden, Js.
Argued April 20—officially released September 1, 2015
(Appeal from Superior Court, judicial district of New
Haven, Blue, J.)
Raymond L. Durelli, assigned counsel, for the appel-
lant (defendant).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, Michael A. Pepper, senior assistant
state’s attorney, and Kevin C. Doyle, former senior
assistant state’s attorney, for the appellee (state).
Opinion
BORDEN, J. The defendant, William Wilkins, appeals
from the judgment of conviction, rendered after a jury
trial, of one count of murder in violation of General
Statutes § 53a-54a (a), and one count of carrying a pistol
without a permit in violation of General Statutes § 29-
35, and, rendered after a bench trial, of one count of
criminal possession of a pistol or revolver in violation
of General Statutes § 53a-217c (a) (1). On appeal, the
defendant claims that, regarding his conviction for mur-
der, his waiver of a hearing in probable cause was not
knowing and voluntary, because: (1) the trial court’s
canvass was inadequate to provide a knowing waiver;
and (2) multiple conflicts of interest tainted the advice
of his defense counsel to waive the hearing. We affirm
the judgment of the trial court.
The jury could reasonably have found the following
facts. On April 4, 2010, the victim, Radcliff DeRoche,
was driving an all-terrain vehicle down West Division
Street toward Dixwell Avenue in New Haven. As the
victim neared the corner of Dixwell Avenue, the defen-
dant, who was directly across the street on the corner,
shot the victim once in the head and then fired three
more shots. Immediately afterward, he and some other
individuals ran away down West Division Street. The
victim fell off the vehicle and died almost immediately.
The state charged the defendant in an information
with murder in violation of § 53a-54a (a), carrying a
pistol without a permit in violation of § 29-35, and, in
a part B information, with criminal possession of a
pistol or revolver in violation of § 53a-217c (a) (1). A
jury found the defendant guilty on the first two counts,
and the court found him guilty on the part B charge
following a bench trial. The trial court, Blue, J., ren-
dered judgment of conviction on all three counts and
sentenced the defendant to a total effective sentence
of sixty-five years incarceration. This appeal followed.
Additional facts and procedural history will be set forth
as necessary.
I
The defendant first claims that his waiver of a hearing
in probable cause as to the murder charge was not
knowing and voluntary, in violation of his right to a fair
trial, because the trial court’s canvass did not inform
him of numerous constitutional and statutory rights
associated with such hearings. We disagree.
The following facts and procedural history are rele-
vant to the resolution of this claim. On September 22,
2010, the court, Fasano, J., canvassed the defendant
regarding his right to a probable cause hearing. The
court first noted that the defendant was represented
by counsel. Defense counsel stated that he had gone
over with the defendant the discovery materials pro-
vided by the prosecutor. Defense counsel also stated
that he had recommended to his client that he waive
the probable cause hearing for strategic reasons, and
that his client agreed. The court then canvassed the
defendant as follows:
‘‘The Court: All right. Now, you have the right to
a hearing in probable cause within sixty days of the
charge—following the charge of murder. Counsel indi-
cates that you wish to waive that right. Have you had
a chance to discuss it with him?
‘‘[The Defendant]: Yes.
‘‘The Court: Are you satisfied with his advice and
counsel?
‘‘[The Defendant]: Yes.
‘‘The Court: Are you waiving that right voluntarily
and of your own free will?
‘‘[The Defendant]: Yes.
‘‘The Court: All right. I’ll make a finding that the
defendant is waiving his right to a hearing in probable
cause voluntarily and of his own free will with the
assistance of competent counsel. I’ll enter a pro forma
not guilty plea on the matter.’’
The defendant concedes that at no time in the trial
court did he raise the claim that his waiver of a probable
cause hearing was not knowing and voluntary, and that
as a consequence, his claim is not preserved for review.
This court is not ordinarily bound to review claims not
distinctly raised to the trial court. Practice Book § 60-
5. The defendant nevertheless seeks to prevail under
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
(1989). Under Golding, a claimant may prevail on an
unpreserved constitutional claim, but ‘‘only if all of the
following conditions are met: (1) the record is adequate
to review the alleged claim of error; (2) the claim is
of constitutional magnitude alleging the violation of a
fundamental right; (3) the alleged constitutional viola-
tion . . . exists and . . . deprived the defendant of a
fair trial; and (4) if subject to harmless error analysis,
the state has failed to demonstrate harmlessness of the
alleged constitutional violation beyond a reasonable
doubt. In the absence of any one of these conditions,
the defendant’s claim will fail. The appellate tribunal
is free, therefore, to respond to the defendant’s claim
by focusing on whichever condition is most relevant
in the particular circumstances.’’ (Emphasis omitted;
footnote omitted.) Id.; see In re Yasiel R., 317 Conn.
773, 781, A.3d (2015) (modifying third prong).
We note at the outset that the record is adequate to
review the defendant’s claim. See State v. Golding,
supra, 213 Conn. 239. Furthermore, because our state
constitution specifically grants criminal defendants
charged with crimes punishable by death or by life
imprisonment the right to a probable cause hearing,
the defendant’s claim is of constitutional magnitude.
Conn. Const., art. I, § 8;1 State v. Ouellette, 271 Conn.
740, 759 n.24, 857 A.2d 907 (2004) (determining that
defendant was entitled to review of his constitutional
claim under Golding because defendant challenged ade-
quacy of canvass preceding his waiver of probable
cause hearing, but rejecting claim because defendant
failed to establish canvass was inadequate); State v.
Mitchell, 200 Conn. 323, 331, 512 A.2d 140 (1986) (char-
acterizing right to probable cause hearing as ‘‘constitu-
tional safeguard’’).
We therefore address the merits of the defendant’s
claim to determine whether it satisfies the third prong
of Golding. See State v. Golding, supra, 213 Conn. 240.
Our review of this legal issue is plenary. See State v.
George J., 280 Conn. 551, 563, 910 A.2d 931 (2006), cert.
denied, 549 U.S. 1326, 127 S. Ct. 1919, 1672 L. Ed. 2d 573
(2007). We conclude that the defendant cannot prevail
upon his claim because the trial court’s canvass was
adequate, and the defendant’s waiver of his right to a
hearing in probable cause was knowing and voluntary.
Although a defendant charged with murder has a
constitutional right to a hearing in probable cause;
Conn. Const., art. I, § 8; he may ‘‘knowingly and volunta-
rily waive’’ that right. General Statutes § 54-46a (a);
State v. Ouellette, supra, 271 Conn. 760–61. ‘‘A waiver
is ordinarily an intentional relinquishment or abandon-
ment of a known right or privilege.’’ Johnson v. Zerbst,
304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).
‘‘[C]ourts indulge every reasonable presumption against
waiver of fundamental constitutional rights and that we
do not presume acquiescence in the loss of fundamental
rights.’’ (Footnote omitted; internal quotation marks
omitted.) Id. ‘‘The standard for an effective waiver of
such a right is that it must be knowing and intelligent, as
well as voluntary.’’ (Internal quotation marks omitted.)
State v. Ouellette, supra, 271 Conn. 752, quoting
Schneckloth v. Bustamonte, 412 U.S. 218, 237, 93 S. Ct.
2041, 36 L. Ed. 2d 854 (1973). ‘‘The determination of
whether there has been an intelligent waiver of right
. . . must depend, in each case, upon the particular
facts and circumstances surrounding that case, includ-
ing the background, experience, and conduct of the
accused.’’ Johnson v. Zerbst, supra, 464.
In the context of the right to a probable cause hearing,
the facts and circumstances that our Supreme Court
has deemed relevant to the inquiry into whether a defen-
dant’s waiver of the right was knowing and voluntary
include the content of the trial court’s canvass on the
right, whether the defendant discussed the waiver with
defense counsel, and whether the defendant personally
reassured the trial court that he understood what he
was waiving. See State v. Ouellette, supra, 271 Conn.
761. In examining the canvass in Ouellette,2 our Supreme
Court noted only that the trial court informed the defen-
dant that he had a right to a probable cause hearing
and that the state would bear the burden at such a
hearing to establish probable cause that defendant com-
mitted the charged offense. Id. The court did not specifi-
cally refer to each item on the list of rights that the trial
court recited, nor did the court hold such an exhaustive
recital to be an indispensable prerequisite to a knowing
and voluntary waiver. Id.; cf. Iowa v. Tovar, 541 U.S.
77, 88, 124 S. Ct. 1379, 158 L. Ed. 2d 209 (2004) (‘‘[w]e
have not, however, prescribed any formula or script to
be read to a defendant who states that he elects to
proceed without counsel’’). In determining that the
defendant’s waiver was knowing and voluntary, the
court expressly referred to only certain parts of the
canvass, namely, the trial court’s references to the
defendant’s right and the state’s burden. State v. Ouel-
lette, supra, 761. The court also looked, however, to the
defendant’s representation by counsel, and the defen-
dant’s own affirmation that he understood what he was
waiving. Id.
This holistic analysis, whereby a reviewing court
measuring the validity of a criminal defendant’s waiver
of a constitutional right does not single-mindedly scruti-
nize the trial court’s canvass for missing admonitions
of procedural components of the right to be waived,
but rather examines all the facts in the record that are
relevant to the issue of whether a defendant waived the
right knowingly and voluntarily, is no jurisprudential
orphan. Its closest progenitor is the analysis of whether
a criminal defendant has knowingly and voluntarily
waived his right to a jury trial.
In State v. Marino, 190 Conn. 639, 462 A.2d 1021
(1983), which contemplated waiver in precisely that
context, our Supreme Court made just such a multivari-
ate, holistic analysis: although the Supreme Court dis-
cussed the content of the trial court’s canvass, the court
also observed that the defendant was represented by
competent counsel and that the defendant had indicated
that his election was a voluntary one. Id., 645–46.
Indeed, our Supreme Court cited with approval the pro-
cedure for jury trial waiver prescribed for the federal
courts by Rule 23 (a) of the Federal Rules of Criminal
Procedure; id., 645; which remains the same as it was
when Marino was decided. Under Rule 23 (a), all that
is required for a defendant to waive his right to a jury
trial is that he so indicate in writing and that the govern-
ment and trial court approve. Fed. R. Crim. P. 23 (a).
Rule 23 (a) requires no waiver canvass at all. United
States v. Carmenate, 544 F.3d 105, 108 (2d Cir.), cert.
denied, 555 U.S. 1019, 129 S. Ct. 586, 172 L. Ed. 2d 442
(2008). Both our Supreme Court in Marino and the
Second Circuit Court of Appeals in Carmenate noted
that such a canvass is preferable, but each declined to
hold that a canvass is constitutionally required. United
States v. Carmenate, supra, 108 (‘‘Accordingly, we now
hold that a district court must evaluate a defendant’s
waiver of his right to a jury trial under all the circum-
stances of the case to ensure that it is knowing, volun-
tary, and intelligent. Although a district court is not
constitutionally required to elicit an oral waiver of a
defendant’s right to a jury trial by conducting a colloquy
or allocution on the record, we strongly encourage the
district court to give appropriate warnings and question
a defendant on the record . . . .’’); State v. Marino,
supra, 644 (‘‘[a]lthough personal interrogation of the
defendant to determine his understanding of the signifi-
cance of his execution of the waiver form is the better
practice, it is not essential under either the rule or the
federal constitution’’).
The comparison between the requirements for waiv-
ing the right to a jury trial and those for waiving a
probable cause hearing is apt because the latter pro-
ceeding is modeled in part after the former and because
the two serve similar functions. Like a jury trial, a proba-
ble cause hearing is a public, adversarial proceeding,
in which the accused has the right to attend and to
participate personally or through counsel, to cross-
examine adverse witnesses, and to obtain transcripts
at his own expense. General Statutes § 54-46a (b) (out-
lining defendants’ procedural rights at probable cause
hearing); Coleman v. Alabama, 399 U.S. 1, 10–11, 90 S.
Ct. 1999, 26 L. Ed. 387 (1970) (holding that preliminary
hearing is critical stage of prosecution and defendant
therefore entitled to counsel thereat); State v. Brown,
279 Conn. 493, 506–507, 903 A.2d 169 (2006) (acknowl-
edging holding of Coleman). As at trial, the rules of
evidence largely determine whether the state’s evidence
against the defendant is admissible in a probable cause
hearing. General Statutes § 54-46a (b).
Unlike a trial, however, a probable cause hearing
results not in a final adjudication of guilt or lack thereof,
but rather in a preliminary determination that the state
has enough evidence—namely, probable cause—to
continue to prosecute the defendant. General Statutes
§ 54-46a (c). The consequences of a finding of probable
cause to prosecute, therefore, although undeniably sig-
nificant, pale in comparison to those of a guilty verdict.
Thus, a defendant loses less when he waives the right
to a probable cause hearing than when he waives the
right to have a jury hear his case at trial. Mindful of
this disparity, we decline to burden the trial courts
with a constitutional requirement that probable cause
hearing waivers be preceded by a canvass containing
an exhaustive list of the procedural rights that such
hearings afford—especially if such an exhaustive can-
vass is not even required in order to waive the right
to a jury, as both Connecticut and federal precedents
indicate. See United States v. Carmenate, supra, 544
F.3d 108; State v. Ouellette, supra, 271 Conn. 758; State
v. Marino, supra, 190 Conn. 644.
We conclude that the defendant’s waiver of his right
to a probable cause hearing in the present case was
knowing and voluntary. The trial court’s canvass,
although not as extensive as that in Ouellette, sufficed
to ensure that the defendant waived his right knowingly
and voluntarily. The canvass here advised the defendant
that he had a right to a probable cause hearing in a
manner similar to the one reviewed by our Supreme
Court in Ouellette. State v. Ouellette, supra, 271 Conn.
759–60. The trial court here also asked the defendant
personally whether he had discussed the waiver with
counsel beforehand and whether the defendant was
satisfied with his lawyer’s advice and counsel, and if his
choice was freely made, none of which was discussed
in the canvass recounted in Ouellette. The defendant
answered all these questions affirmatively.
In assessing whether the waiver of a constitutional
right was knowing, trial courts are entitled to rely upon
such assertions, particularly when the defendant is rep-
resented by competent counsel. See State v. Marino,
supra, 190 Conn. 645 (‘‘[i]t is not unreasonable to infer
such a waiver from the free expression by a defendant
of his election of a non-jury trial especially where he
is represented by counsel’’). ‘‘We cannot assume that
in performing his duty of competent representation his
counsel did not advise the defendant of the conse-
quences of his choice, even to the extent of the refine-
ments the defendant now demands.’’ State v. Marino,
supra, 646. As noted previously, a defendant loses less
when he waives his right to a probable cause hearing
than when he waives his right to a jury trial. Because
the defendant’s affirmation of his representation by
competent counsel could suffice to support a finding
of waiver of a jury trial even when the trial court’s
waiver canvass does not exhaustively detail the proce-
dural rights waived, a fortiori it can support a waiver
of a probable cause hearing in the same circumstances.
Cf. id. Given the court’s canvass, the defendant’s
responses, and the fact that the defendant was repre-
sented by competent counsel, we conclude that the
defendant’s waiver of his right to a probable cause
hearing was knowing and voluntary.
The defendant claims, however, that the trial court’s
canvass was inadequate because it did not specifically
apprise him of the all the procedural rights that a proba-
ble cause hearing would have afforded him. The defen-
dant argues that the canvass was inadequate because
the court did not inform him of constitutional rights
associated with probable cause hearings, nor of proce-
dural safeguards prescribed by § 54-46a (b), namely:
that at the hearing, the state would bear the burden of
proving probable cause and would adduce evidence to
support it; that the defendant would not have to adduce
any evidence; that the defendant could simply sit by
with his lawyer and hear the state’s evidence; that the
defendant would have the right to participate in the
hearing either personally or through counsel; and that
the defendant could make arguments to the court,
cross-examine adverse witnesses, and obtain a hearing
transcript at his own expense.3 In so arguing, the defen-
dant relies on Ouellette in which the trial court delivered
a canvass that apprised the defendant of many of these
rights, although not the rights of participation and cross-
examination, which § 54-46a (b) does grant. General
Statutes § 54-46a (b); State v. Ouellette, supra, 271
Conn. 759–60.
As we have explained, however, the defendant’s reli-
ance on Ouellette is misplaced because Ouellette held
merely that the defendant’s waiver of his right to a
probable cause hearing was knowing and voluntary.
State v. Ouellette, supra, 271 Conn. 761. Although our
Supreme Court cited the trial court’s canvass—in partic-
ular, its reference to the state’s burden to prove proba-
ble cause—with approval, the Supreme Court did not
hold that an identical canvass is a prerequisite to a valid
waiver of the right to a probable cause hearing. Id. The
court merely cited the canvass to support its conclusion
that the defendant’s waiver was knowing and voluntary.
Id. Tellingly, in describing the canvass, the Supreme
Court did not even refer to all the procedural rights
that the trial court listed, let alone the complete litany
that § 54-46a (b) prescribes. Id. This truncated analysis
undermines the defendant’s argument that the trial
court must specifically inform the defendant of the
omitted rights in order for the canvass to suffice.
Furthermore, even if the canvass by itself were insuf-
ficient, the record contains additional facts, apart from
the canvass, that suggest that the defendant’s waiver
of his right to a probable cause hearing was knowing
and voluntary. See id. Chief among these facts is the
defendant’s representation by competent counsel. In
evaluating whether a defendant’s waiver of a constitu-
tional right was voluntary, our Supreme Court has given
considerable weight to the fact that a defendant is repre-
sented by counsel. ‘‘Finally, [w]e cannot assume that
in performing his duty of competent representation
[defense] counsel did not advise the defendant of the
consequences of his choice, even to the extent of the
refinements the defendant now demands.’’ (Internal
quotation marks omitted.) State v. Ouellette, supra, 271
Conn. 758, quoting State v. Marino, supra, 190 Conn.
646. ‘‘In addition, we will not assume that the defendant
did not fully discuss the decision to forgo a jury trial
with defense counsel.’’ State v. Ouellette, supra, 758.
In addition, we note that the record reflects that the
defendant’s decision to waive the probable cause hear-
ing was strategic, made after consultation with his coun-
sel. We are mindful that, even when unexplained on
the record, such a decision will usually be strategic
and will usually reflect factors such as the defendant’s
decision, on the one hand, to waive the opportunity to
view some of the state’s evidence, and, perhaps, to
cross-examine its witnesses, balanced against, on the
other hand, giving the state an opportunity to rehearse
its witnesses in giving their testimony prior to trial, and
permitting the state to preserve the witness’ testimony
for trial in the event of the subsequent unavailability
of the witness. See, e.g., State v. Estrella, 277 Conn.
458, 474–77, 893 A.2d 348 (2006) (holding that witness’
testimony at probable cause hearing was admissible at
trial because witness no longer available to testify and
because defendant had adequate opportunity to cross-
examine him at probable cause hearing).
The defendant argues, in effect, however, that we
should not indulge the ordinary presumption that
defense counsel fully informed and advised the defen-
dant of the consequences of waiver because the public
defender’s office, of which defense counsel was a mem-
ber, had previously represented four of the state’s wit-
nesses. As we discuss more fully in part II of this
opinion, however, the record is too sparse to allow us
even to review that claim, let alone to discern how—
or whether—it affected the voluntariness and know-
ingness of the defendant’s waiver of the probable cause
hearing. As such, we presume in evaluating that waiver
that defense counsel fully discussed the decision to
forgo a probable cause hearing with the defendant so
as to render his waiver knowing and voluntary. See
State v. Ouellette, supra, 271 Conn. 758.
II
The defendant next claims that the trial court was
constitutionally obliged, and failed, to inquire indepen-
dently into the knowingness and voluntariness of the
defendant’s waiver of the probable cause hearing when
the trial court learned that the office of the public
defender, of which defense counsel was a member, had
represented four of the state’s witnesses before the
defendant waived his right to a probable cause hearing.
Specifically, the defendant argues that because either a
finding of probable cause or a valid waiver of a probable
cause hearing is a jurisdictional prerequisite, the trial
court has a continuing obligation to monitor, and if
necessary inquire, into its jurisdiction if facts arise that
suggest that a defendant’s waiver of his probable cause
hearing was invalid, even if the trial court previously
found that the defendant had validly waived the right.
Because the record is inadequate, we decline to review
this claim.
We have set forth the law of waiver in part I of this
opinion, and therefore begin with the law that governs
the right to counsel that is free from conflicts of interest.
The sixth amendment to the federal constitution,4 as
incorporated upon the states by the due process clause
of the fourteenth amendment,5 and article first, § 8, of
the Connecticut constitution,6 both guarantee criminal
defendants the right to the effective assistance of coun-
sel in criminal proceedings. Strickland v. Washington,
466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984); Powell v. Alabama, 287 U.S. 45, 71, 53 S. Ct. 55,
77 L. Ed. 58 (1932); State v. Gaines, 257 Conn. 695, 706,
778 A.2d 919 (2001). This right, in turn, comprehends
the right to conflict free representation. Wood v. Geor-
gia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 220
(1981); State v. Gaines, supra, 706.
‘‘A potential conflict of interest may exist when coun-
sel for the defendant represents, or has represented, a
witness for the state.’’ State v. Gaines, supra, 257 Conn.
707; see also State v. Jennings, 216 Conn. 647, 656, 583
A.2d 915 (1990); State v. Martin, 201 Conn. 74, 77, 513
A.2d 116 (1986).
The right to counsel attaches at all critical stages of
prosecutions. Iowa v. Tovar, supra, 541 U.S. 87; Hol-
loway v. Arkansas, 435 U.S. 475, 489, 98 S. Ct. 1173, 55
L. Ed. 2d 426 (1978); State v. Gaines, supra, 257 Conn.
706–707. A probable cause hearing is a critical stage of
a prosecution. State v. Gaines, supra, 707. A hearing at
which the defendant waives a constitutional right, such
as that to probable cause hearing, is also a critical
stage.7 See Conn. Const., art. I, § 8 (right to hearing in
probable cause); General Statutes § 54-46a (statutory
rights and procedures associated with right to probable
cause hearing); State v. Mitchell, supra, 200 Conn.
329–31 (detailing state constitutional right to probable
cause hearing); cf. Iowa v. Tovar, supra, 541 U.S. 81
(guilty plea, which is waiver of constitutional right to
plead not guilty, is critical stage of prosecution at which
right to counsel attaches).
‘‘Moreover, one of the principal safeguards of this
right is the rule announced by [our Supreme Court] that
[a trial] court must explore the possibility of a conflict
. . . when it knows or reasonably should know of a
conflict . . . . Because this right to conflict free repre-
sentation applies to all critical stages of a criminal pro-
ceeding, the duty of a court to safeguard this right
applies equally to all such stages . . . [including] a
hearing in probable cause.’’ (Citations omitted; internal
quotation marks omitted.) State v. Gaines, supra, 257
Conn. 707.
When a trial court so inquires, however, ‘‘[it] has
broad discretionary power to determine whether an
attorney should be disqualified for an alleged . . . con-
flict of interest. . . . Moreover, [i]n determining
whether the Superior Court has abused its discretion
in denying a motion to disqualify, [a reviewing] court
must accord every reasonable presumption in favor of
its decision. . . . The ultimate issue is whether the trial
court could reasonably have reached the conclusion
that it did.’’ (Citations omitted; internal quotation marks
omitted.) State v. Jennings, supra, 216 Conn. 654–55.
‘‘In the absence of an affirmative duty by the trial
court to inquire, however, a defendant who raised no
objection at trial must demonstrate that an actual con-
flict of interest adversely affected his [or her] lawyer’s
performance in order to obtain reversal of his [or her]
conviction. . . . Before the trial court is charged with
a duty to inquire, the evidence of a specific conflict
must be sufficient to alert a reasonable trial judge that
the defendant’s sixth amendment right to effective
assistance of counsel is in jeopardy.’’ (Citation omitted;
internal quotation marks omitted.) State v. Gaines,
supra, 257 Conn. 708. In order to fulfill this requirement,
therefore, the defendant must provide a reviewing court
with a record that, at a bare minimum, ‘‘demonstrate[s]
that an actual conflict of interest adversely affected his
[or her] lawyer’s performance . . . .’’ (Internal quota-
tion marks omitted.) Id.
To synthesize the foregoing: a criminal defendant
has a right to conflict free representation at all critical
stages of the prosecution, including the probable cause
hearing. Wood v. Georgia, supra, 450 U.S. 271; State v.
Gaines, supra, 257 Conn. 706. Such a conflict may exist
when the defendant’s counsel has represented a state
witness. State v. Gaines, supra, 707; State v. Jennings,
supra, 216 Conn. 654–56; State v. Martin, supra, 201
Conn. 77. A trial court’s duty to safeguard this right
includes a duty of inquiry that arises when the trial
court knows or should know that a conflict exists. State
v. Gaines, supra, 707. Absent such a duty, a defendant
who failed to object at trial must demonstrate that ‘‘an
actual conflict of interest adversely affected his [or her]
lawyer’s performance in order to obtain reversal of his
[or her] conviction.’’ (Internal quotation marks omit-
ted.) Id., 708.
The following additional facts and procedural history
are relevant to this claim. On April 27, 2012—three days
before the defendant’s trial was to begin—the public
defender who had been representing the defendant and
who had represented him when he waived his right to
a probable cause hearing, and his supervisor came
before the trial court with the defendant in order to alert
the court to several conflicts of interest. The supervisor
disclosed that the public defender’s office had received
the state’s discovery materials early on, but admitted
that neither he nor defense counsel had reviewed them
until recently because of their heavy caseload. The
court noted that the public defender’s office had repre-
sented four eyewitnesses, and possibly two others. The
defendant refused to waive any of these conflicts when
the trial court asked him. The court therefore granted
the defendant an appointment of a special public
defender.
Because, as the defendant concedes, he did not dis-
tinctly raise this claim at trial, the claim is also not
preserved. He accordingly seeks to prevail under State
v. Golding, supra, 213 Conn. 239–40, the standard for
which we set forth previously. See part I of this opinion.
We conclude that the defendant has not met the first
prong of Golding because he has not supplied us with
a record adequate to review his claim. See State v.
Golding, supra, 213 Conn. 239. In this case, because
the defendant did not object at trial to his counsel’s
alleged conflict of interest, the defendant bears the bur-
den of proving that the conflict ‘‘adversely affected his
. . . lawyer’s performance in order to obtain reversal
of his . . . conviction.’’ (Internal quotation marks
omitted.) State v. Gaines, supra, 257 Conn. 707.
Although there is a transcript of the hearing at which
the defendant was alerted to, and chose not to waive,
his conflicted counsel, the remainder of the record does
not disclose any point before this hearing at which
defense counsel was even aware of—let alone influ-
enced by—the conflicts of interest that came to light
in April, 2012. The defendant therefore has not provided
us with any evidence that ‘‘an actual conflict of interest
adversely affected his lawyer’s performance . . . .’’
(Internal quotation marks omitted.) Id., 712.
Indeed, the only relevant record available—the tran-
script of the hearing itself—suggests that the only rea-
son that the conflicts had persisted was that they had
gone undetected by the public defender’s office. If true,
this excuse undermines the defendant’s claim that con-
flicted counsel vitiated his waiver; defense counsel’s
advice and counsel could hardly have stemmed from
divided loyalties if he mistakenly thought them undi-
vided. We will not, however, rule on the matter when
‘‘the record is silent as to whether, or how, [defense
counsel’s] performance at the probable cause hearing
adversely was affected by the alleged conflict.’’ Id.
Because the record is inadequate for review, the defen-
dant’s claim fails under the first prong of Golding.
Accordingly, we decline to review his claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Article first, § 8, of the Connecticut constitution provides in relevant
part: ‘‘No person shall be held to answer for any crime, punishable by death
or life imprisonment, unless upon probable cause shown at a hearing in
accordance with procedures prescribed by law . . . .’’
2
The canvass recounted in Ouellette was as follows:
‘‘[State’s Attorney]: The next issue . . . would be normally a probable
cause hearing. It’s my understanding from talking to [defense counsel] that
he and his client have decided, after discussing this matter, that they wish
to waive [the] probable cause hearing.
‘‘[Defense Counsel]: That’s accurate.
‘‘The Court: All right. Mr. Ouellette, do you understand what was just said?
‘‘The Defendant: Yes.
‘‘The Court: You have a right to a probable cause hearing, and the burden
in connection with that hearing is upon the state, or it would have been.
The state has the burden of proving that there was probable cause, based
on the underlying facts, to arrest you and charge you with the offense with
which you stand charged, and the state would put on evidence to support
that claim. You would not have to put on any evidence of your own. You
have the right to simply sit by with your counsel and listen to what is
presented by the state. . . . It’s my understanding, based on what was just
represented by [defense counsel] and confirmed, I guess, by the state’s
attorney, that you don’t wish to contest or to require the probable cause
hearing to go forward?
‘‘The Defendant: No.
‘‘The Court: All right. So that you’re waiving that right which you have?
‘‘The Defendant: Yes.
‘‘The Court: And that there’s no question that you’re doing it understand-
ingly and knowingly of your rights as I’ve explained them to you?
‘‘The Defendant: Yes.’’ (Internal quotation marks omitted.) State v. Ouel-
lette, supra, 271 Conn. 759–60.
3
General Statutes § 54-46a (b) provides: ‘‘Unless waived by the accused
person or extended by the court for good cause shown, such preliminary
hearing shall be conducted within sixty days of the filing of the complaint
or information in Superior Court. The court shall be confined to the rules
of evidence, except that written reports of expert witnesses shall be admissi-
ble in evidence and matters involving chain of custody shall be exempt from
such rules. No motion to suppress or for discovery shall be allowed in
connection with such hearing. The accused person shall have the right to
counsel and may attend and, either individually or by counsel, participate
in such hearing, present argument to the court, cross-examine witnesses
against him and obtain a transcript of the proceedings at his own expense.
At the close of the prosecution’s case, if the court finds that, based on the
evidence presented by the prosecution, probable cause exists, the accused
person may make a specific offer of proof, including the names of witnesses
who would testify or produce the evidence offered. The court shall not allow
the accused person to present such evidence unless the court determines that
such evidence would be sufficient to rebut the finding of probable cause.’’
4
The sixth amendment to the United States Constitution provides in rele-
vant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right
. . . to have the assistance of counsel for his defense.’’
5
The fourteenth amendment to the United States Constitution provides
in relevant part: ‘‘[N]or shall any State deprive any person of life, liberty,
or property, without due process of law . . . .’’
6
Article first, § 8, of the Connecticut Constitution provides in relevant
part: ‘‘In all criminal prosecutions, the accused shall have a right to be heard
by himself and by counsel . . . .’’
7
Although State v. Sober, 166 Conn. 81, 86, 347 A.2d 61 (1974), holds to
the contrary and has not explicitly been overruled, it both predates and
explicitly relies upon the absence, at the time, of the now existing state
constitutional right to a probable cause hearing in certain cases. Given
our Supreme Court’s pronouncement in State v. Mitchell, supra, 200 Conn.
329–30, that there is a constitutional right to a probable cause hearing, we
decline to follow Sober.